14. Discussion on the Indian constitution Unit Two

This is the Second discussion on the Nature of the Indian Constitution.

Describe in 300 words the question whether the Indian constitution is rigid or flexible.

Note: only a summary discussion takes place in this blog. Real discussion will be in the seminars in the classroom. The entire group should draft the answer and blog it to me. No individual member of the blog can do it separately. However all the members of the group need not agree. A consolidated report not exceeding ten lines must be posted in the blog. PLEASE DO NOT TAKE MORE THAN 15 MINUTES TO ANSWER

NOTE: Only students of our institute can participate in the discussions. Outsiders are invited to enrol themselves and participate.

A writ of habeas corpus, also known as the Great Writ, is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the person. If the custodian does not have authority to detain the prisoner, then he must be released from custody. The prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado.

Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law then habeas corpus may not be a useful remedy. Furthermore, in many countries, the process may be suspended due to a national emergency.

The writ of habeas corpus is issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of his or her detention. If the detention is found to be illegal, the court issues an order to set the person free.

Foreigners living in India are entitled to the protection of the right to life and liberty as guaranteed by Article 21 of the Constitution, the Supreme Court has said.

“No person including a foreigner can be deprived of his life and liberty, except according to procedure prescribed by law,” a bench of Justices C K Thakker and Markandeya Katju observed while dealing with an appeal filed by Iranian national Fred Babakhanian to challenge his deportation.

Constitutional Foundation
These principles do have constitutional foundation. The Article 21s and 14 of Constitution of India embody these principles of natural justice and rule of law. These Articles incorporate substantial and procedural due process. Fairness when accused is deprived of liberty Article 21. Absence of discriminatory class legislation article 14.

The sole basis of two basic principles. They are: 1. Nemo judex in causa sua= no one should be made a judge in his own cause (rule against bias) and 2. audi alterum partem (hear the other side).

The enemy of justice is the Bias, which is of four kinds: 1-pecuniary interest or 2.personal interest,a) by blood relation or b) marital relations, c) friendship, 3. Hostility
4. Official Bias, 5. Subject Matter Bias

It is the longest written constitution of any sovereign country in the world, containing 450 articles in 22 parts, 12 schedules and 95 amendments.

The Constitution was enacted by the Constituent Assembly on 26 November 1949, and came into effect on 26 January 1950. 26 January was chosen to commemorate the declaration of independence of 1929.) It declares the Union of India to be a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty, and endeavours to promote fraternity among them. The words “socialist”, “secular”, and “integrity” were added to the definition in 1976 by constitutional amendment. India celebrates the adoption of the constitution on 26 January each year as Republic Day.After coming into effect, the Constitution replaced the Government of India Act 1935 as the country’s fundamental governing document.

Legislative assembly of Britain and of other governments modeled after it. The British Parliament consists of the monarch, the House of Lords, and the House of Commons, and traces its roots to the union , of the Great Council and the King’s Court, two bodies that treated with and advised the king. In the 14th century, Parliament was split into two houses, with the lords spiritual and temporal (i.e., not only the nobility but also high officials of the church) debating in one and the knights and burgesses in the other. In the 14th century Parliament also began to present petitions (“bills”) to the king, which with his assent would become law

The Motilal Nehru Committee 1928 Draft Constitution included under clause 4(v) dealing with Fundamental rights had the following: “All citizens in the Commonwealth of India have the right to free elementary education without any distinction of caste or creed in the matter of admission into any educational institutions, maintained or aided by the state, and such right shall be enforceable as soon as due arrangements shall have been made by competent authority,” To this, it was added, “Provided that adequate provision shall be made by the State for imparting public instruction in primary schools to the children of members of minorities of considerable strength in the population through the medium of their own language and in script as is in vogue among them.”

An explanation was also added to this clause: “Explanation: This provision will not prevent the State from making the teaching of the language of the Commonwealth obligatory in the said schools.”

In Indian law, Public Interest Litigation means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. In Public interest litigation the power is given to the member of public by courts etc through judicial consciousness judicial activism,that member of the public can be a NGO, Institution or an individual.

The preamble is of considerable legal significance in so far as embodies an enacting clause. It cannot be resorted as the basic in construing the various provisions of the constitution, which are couched in plain language. The preamble contains some expressions like justice, liberty, equality, and fraternity portion of the constitution consists of merely temporary provisions designed to bridge over the transition from the old constitution to new,and also
, preamble as such is widely accepted as the quintessence or soul and spirit of a constitution, as it embodies the fundamentals and the basic of the constitution as well as the vision and commitment of a newly liberated nation or people after its passing through the inevitable birth pangs of national independence from an oppressive and colonial regime.

Human rights are indivisible, inter-dependent and inter-related having a clear linkage with human development; and both share a common vision with a common purpose. The emphasis on human dignity is laid in the UN Charter, Universal Declaration of Human Rights and several international Covenants. Same is the emphasis in the Constitution of India which assures dignity of the individual as a core value in its Preamble. The Constitution of India was drafted nearly at the same time as the UDHR and contains similar provisions. Part-III of the Constitution containing the fundamental rights correspond to articles 2-21 of the UDHR and the directive principles of State Policy in Part-IV of the Constitution correspond to articles 22-28 of the UDHR. The International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), both of 1966 are a further elaboration of these rights.

Article 13 (2) provides for the protection of the fundamental rights of the citizen. Parliament and the
state legislatures are clearly prohibited from making laws that may take away or abridge the
fundamental rights guaranteed to the citizen. They argued that any amendment to the Constitution
had the status of a law as understood by Article 13 (2). In 1952 (Sankari Prasad Singh Deo v. Union
of India) and 1955 (Sajjan Singh v. Rajasthan), the Supreme Court rejected both arguments and
upheld the power of Parliament to amend any part of the Constitution including that which affects the
fundamental rights of citizens. Significantly though, two dissenting judges in Sajjan Singh v.
Rajasthan case raised doubts whether the fundamental rights of citizens could become a plaything of
the majority party in Parliament.